Where a deceased dies testate or intestate and certain of the testate or intestate heirs elect to renounce their right to the inheritance, the provisions of section 2C(1) and (2) of the Wills Act 7 of 1953 or section 1(6) and (7) of the Intestate Succession Act 81 of 1987, respectively, must be adhered to.
The relevant sections read as follows:
“Section 2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.–
(1) If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.”
“Section 1. Intestate Succession
(6) If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse.
(7) If a person is disqualified from being an heir of the intestate estate of the deceased, or renounces his right to be such an heir, any benefit which he would have received if he had not been so disqualified or had not so renounced his right shall, subject to the provisions of subsection (6), devolve as if he had died immediately before the death of the deceased and, if applicable, as if he was not so disqualified.”
Where, for example, A dies intestate and he leaves a spouse and three children, and the children renounce their inheritance, the inheritance will devolve upon their surviving parent (see section 1(6) of the Intestate Succession Act). Similarly should A die testate and bequeath his estate to his wife and children, and the children elect to renounce their inheritance, such inheritance will devolve upon the wife (mother) (see section 2C(1) of the Wills Act.
However, where A dies intestate or testate and he only leaves children, and only some of the children renounce their inheritance, such renounced inheritance will only devolve on the remaining child, if the renounced heirs have not left any descendants who will represent such heirs (see section 1(6) of the Intestate Succession Act and section 2C(2) of the Wills Act, respectively. Such descendants will represent the renounced heirs, and division of the estate shall take place per stirpes.
It would appear that there exists a misconception that where an heir renounces his/her inheritance, it either devolves intestate, or devolves upon the remaining heirs. It is trusted that the above has shed more light on succession where renunciation occurs.
Please do not hesitate to contact me for further information.
TONKIN CLACEY PRETORIA
012 346 1278